Publications: Illinois Legislature Gives Discrimination Claimants Fast-Track to Court

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In a move certain to raise the stakes in Illinois workplace discrimination litigation, on August 17, 2007 Governor Rod Blagojevich signed a major amendment to the Human Rights Act that grants discrimination claimants expedited rights to file suits in the circuit courts and obtain jury trials without following prior administrative complaint, investigation or conciliation procedures.

On and after January 1, 2008 claimants may radically shorten their stays before the over-taxed Illinois Department of Human Rights and Illinois Human Rights Commission, go to court and demand jury trials in their employment discrimination claims whether the IDHR’s investigation has found their allegations meritorious or wholly unfounded. Before the August 17 amendments, jury trials were unavailable under the Human Rights Act irrespective of the results of the IDHR’s investigation. Parties had no rights to bench or jury trials in court, and had only narrowly-limited rights to proceed in court to pursue administrative or appellate review of the decisions of the HRC.

But effective January 1, 2008 claimant employees may file suit in the circuit courts and seek jury trials of their claims if the IDHR 1) dismisses their charge for lack of substantial supporting evidence; 2) finds substantial evidence but fails to file a complaint on their behalf in the HRC within 14 days of their request or within 90 days of the IDHR’s “substantial evidence” finding if no such request was made; or 3) fails to complete its investigation and issue its report within 365 days of the charge being filed.

Under the new law, claimants must file their suits in the circuit court for the county in which the alleged job discrimination occurred and while they are entitled to all of the same remedies previously available before the HRC alone, they now also have the enhanced procedural right to a jury’s decision of all contested fact issues, including the hotly-disputed issue of discriminatory intent.

Employers have long faced the threat of costly federal litigation and jury trials in suits under Title VII of the Civil Rights Act of 1964, though federal employment discrimination cases remain subject to the mandate that claimants first fully exhaust their administrative remedies before the U.S. Equal Employment Opportunity Commission. But the specter of expedited state court jury trials in Human Rights Act cases presided over by circuit judges who are typically unfamiliar with employment discrimination law is entirely new. The same Illinois courts in which juries have returned record-breaking personal injury verdicts, particularly Cook County, will undoubtedly attract savvy plaintiffs’ employment lawyers seeking to maximize their cases’ value.

Against this backdrop of increased employment liability claims exposure employers should consider risk-containment measures, review and, where necessary revise their internal charge investigation/resolution procedures, and consider implementing mandatory arbitration agreements and personnel policies and employment agreements through which employees waive the right to a jury trial and designate an agreed forum for arbitral employment dispute resolution.